Move probation to the executive branch?

By all accounts, a widely respected new leader, Ron Corbett, is restoring merit-based hiring and a positive sense of mission in the probation system. The specific patronage problems identified by the Ware report may have been substantially solved by the change in leadership.

At a public discussion about probation last week, experts spent most of their time debating whether probation should remain as an agency within the judiciary branch or should be integrated with other public safety functions in the executive branch — prisons, houses of correction, parole, youth services.

For those advocating a reorganization, the patronage scandal is one of those crises which shouldn’t be wasted, but it’s not obvious that one branch is intrinsically more likely to maintain its integrity than another. So, the patronage issue actually wasn’t central to the discussion.

The Chief Justice for Administration and Management of the Trial Court, Judge Mulligan, made this main argument for keeping probation in the judiciary: Judges and probation officers form a team doing rough social work with defendants in the lower courts. They have a very special relationship that should not be disrupted. Judge Mulligan specifically highlighted drug courts where judges combine group therapy with punishment to motivate persons with addictions to change.

In the 90s, I was an advocate of expanding drug courts and was disappointed with judges who felt that they “shouldn’t be doing social work”. Having spent a lot of time watching judicial social work up close, I’ve come to feel that the reluctant judges were right. Good therapy and good social work require a level of candid personal connection with clients that just isn’t possible in a court room. Defendants faced with the awesome power of the court and the threat of punishment are rarely honest and open about their lives. There is a lot of bad faith in courtrooms and judges rely on very rough guesswork to ascertain where the truth lies. Judges also have a relatively blunt set of tools — they can’t engage in the complex family negotiations that social workers often undertake. Finally, judges are at risk of losing sight of legal fairness if they become besotted with social work missions — I once represented a young man with a clean record charged only with shoplifting. A judge who believed he was saving the young man from his drug problem had held him for a month in jail.

Judge Cordy of the Supreme Judicial Court, a veteran of the Weld administration, added his concern that probation officers working for the executive branch might be subject to political influence in their recommendations to judges on sentencing issues. But the real daily political problem in the courts is that most people in the court room follow three basic rules (usually explained in more colorful language): Don’t irritate the judge, don’t irritate the judge and don’t irritate the judge. All too often, probation officers, beholden to judges, know exactly what judges want to hear and can’t help but bias their reports in that direction.

The positive arguments for change are strong. Two thirds of states locate probation in the executive branch. A unified correctional system might do a much better job of allocating resources, sharing information and integrating systems both to protect the public and to rehabilitate defendants. This is especially true in the common situation where probation is supervising people after release from prison.

The conversation is ongoing, but I came out of that meeting feeling that the arguments for the status quo — leaving probation in the courts — were weaker than the arguments for integrating it in the executive.